Rajasthan High Court - Jodhpur
Dal Chand vs State Of Rajasthan on 13 July, 2022
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 184/2022
Dal Chand S/o Bhagwan Lal Mali, Aged About 33 Years,
Gadariyawas, P.s. Mandal, Dist. Bhilwara (Raj.). (At Present
Lodged In Central Jail, Udaipur).
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
Connected With
S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 185/2022
Kamlesh Kumar S/o Bheru Lal Gurjar, Aged About 29 Years, R/o
Chakkikhera (Kochariya) P.s. Mandal, District Bhilwara (Raj.) (At
Present Lodged At Central Jail Udaipur)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. R.K. Charan
Dr. Vijendra Mahndiyan a/w
Mr. Pramod Nagar on VC.
For Respondent(s) : Mr. Mukesh Trivedi PP
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
Reserved on 05/07/2022
Pronounced on 13/07/2022
1. These criminal misc. suspension of sentence applications
under Section 389 Cr.P.C. have been preferred claiming the
following relief:
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"It is, therefore, humbly prayed that this application
may kindly be allowed and the sentence of
imprisonment and fine passed by Special Judge,
NDPS Act Cases No.2, Chittorgarh in Sessions Case
No.54/2017 (33/16) vide judgment dated 22.2.2022
may kindly be suspended during the pendency of this
appeal and the appellant-petitioner may kindly be
ordered to be released on bail."
2. The matter pertains to the offences under Sections 8/15,
8/25 & 8/29 of the NDPS Act.
3. As regards accused-applicant Dalchand, learned counsel for
the accused-applicants submitted that neither the said accused-
applicant was the registered owner of the seized vehicle, nor the
same was recovered from his possession, nor was he given the
requisite notice under Section 50 of the NDPS Act. As per learned
counsel, the samples were not kept in the separate bags, rather
the samples were mixed, and thereafter, converted into one
sample, and thus, the whole proceeding has been done in an
illegal manner.
4. As regards accused-applicant Kamlesh, learned counsel for
the accused-applicants submits that though it was alleged that the
said accused-applicant ran away from the spot, but after his
arrest, the requisite identification parade was not conducted. As
per learned counsel, accused-applicant Kamlesh has stated before
the police that the vehicle in question was sold by him to Kishan,
prior to the incident in question, but instead of apprehending the
said Kishan, false implication of accused-applicant was made in
this case.
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5. Learned counsel for the accused-applicants also harped upon
non-compliance of the provisions of Sections 42 & 50 of the NDPS
Act, in this case.
6. Learned counsel for the accused-applicants relied upon the
judgment rendered by this Hon'ble Court in Netram Vs. State of
Rajasthan (S.B. Criminal Appeal No.673/2008, decided on
18.10.2013) as well as the order dated 07.07.2021 passed by this
Hon'ble Court in Sashi Vs. Union of India (S.B. Criminal Misc.
Suspension of Sentence Application (Appeal)
No.505/2020) and the order dated 12.01.2022 passed by this
Hon'ble Court in Ram Singh Vs. State (S.B. Criminal Misc. III
Suspension of Sentence Application (Appeal)
No.768/2020).
7. Learned Public Prosecutor however, opposed the aforesaid
submissions made on behalf of the accused-applicants.
8. Heard learned counsel for the parties as well as perused the
record of the case, alongwith the judgment and orders cited at the
Bar.
9. This Court finds that accused-applicant Kamlesh, though
averred that he had sold the vehicle in question on 07.11.2015 i.e.
prior to the incident in question, but the same has not been
substantiated by placing any requisite document on record.
10. This Court further finds that though accused-applicant
Dalchand may not be the owner of the vehicle in question, but he,
alongwith Kamlesh at the relevant time, was sitting in the vehicle
and found to be in possession of the contraband article, which
clearly falls within the ambit of Section 25 of the NDPS Act, as
rightly observed by the learned trial court.
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11. As regards the contention of the accused-applicants
regarding non-compliance of the provisions of Sections 42 & 50 of
the NDPS Act, this Court finds that the learned trial court has
rightly observed that looking into the facts of the case, such
compliance was not mandatory, but the same was only directory
in nature.
12. The judgment and orders relied upon by learned counsel for
the accused-applicants does not render any assistance to the case
of the accused-applicants.
13. Thus, in view of the above and on a consideration of the
overall facts and circumstances of the case, this Court does not
find it a fit case, so as to suspend the sentence as awarded to the
accused-applicants by the learned trial court.
14. Consequently, the present applications seeking suspension of
sentence are dismissed.
(DR.PUSHPENDRA SINGH BHATI), J.
SKant/-
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